The Department of Labor (DOL) has issued a new Field Assistance Bulletin addressing how the closure of summer camps and programs affects an employee’s entitlement to Expanded Paid Sick Leave (EPSL) or Expanded FMLA (EFMLA) under the Families First Coronavirus Response Act (FFCRA). With so many summer camps and programs having announced their closure due to COVID-19 before children began attending, or even enrolling, questions arose as to whether those programs were considered places of care whose closure triggered the right to leave under the FFCRA.
As we know, the FFCRA requires covered employers to provide eligible employees with up to two weeks of EPSL and twelve weeks of EFMLA if ab employee is unable to work because their child’s place of care is closed due to COVID-19. The regulations specifically include summer camps and summer enrichment programs in the definition of “place of care.” An employee who requests FFCRA leave based on the closure of a summer camp or other summer program must submit the same type of information as they would for the closure of a school or daycare, including the name of the summer program.
When is a Camp or Program a Place of Care?
The Bulletin clarifies that the requirement to name a specific summer camp or program is satisfied if the child applied for or was enrolled in the camp/program before it closed, or if the child had attended the camp/program in prior summers and was eligible to attend again, or if there are other circumstances that demonstrate that the child was going to be enrolled in the camp or program. The bulletin also discusses that while prior attendance at a camp/program may establish the camp as a place of care, it is not required. For example, a child may not have been old enough to have attended in prior years, but would have been old enough this year, or conversely, the child may have aged out of the program this year despite having attended before.
The Bulletin states:
[Wage & Hour Division] investigators evaluating whether an employer improperly denied FFCRA leave to an employee based on the closure of a summer camp or program should consider whether there is evidence of a plan for the child to attend the camp or program or, short of a “plan,” whether it is still more likely than not that the child would have attended the camp or program had it not closed due to COVID-19. But a parent’s mere interest in a camp or program is generally not enough.
While it seems a bit late now to just be issuing guidance on summer camps and programs, this Field Assistance Bulletin should nevertheless be helpful in resolving questions as to when employees are entitled to leave benefits under the FFCRA.